Midterm #1 (Vocab) Flashcards
Law
A body of rules of conduct prescribed by controlling authority and having binding
legal force.
Common Law
As distinguished from the Roman law, the modern civil law, the canon law, and
other systems, the common law is that body of law and juristic theory which was
originated, developed, and formulated and is administered in England, and as
obtained among most of the states and peoples of Anglo‐Saxon stock. (Black’s Law)
Action in Equity
A civil trial held without a jury when relief sought by the plaintiff is equitable in
nature, such as an injunction, or a divorce or dissolution of a marriage.
Federalism
A system of government in which the same territory is controlled by two levels of
government. Generally, an overarching national government governs issues that
affect the entire country, and smaller subdivisions govern issues of local concern.
The doctrine of stare decisis
Latin. “To stand by decided cases; to uphold precedent; to maintain former
adjudications. “
Precedent
(1) An adjudged case or decision of a court of justice, considered as furnishing an
example or authority for an identical or similar case afterwards arising or a similar
question of law. (2) A draft of a conveyance, settlement, will, pleading, bill, or other
legal instrument, which is considered worthy to serve as a pattern for future
instruments of the same nature. (Black’s Law)
Unwritten Law
All that portion of the law, observed and administered in the courts, which has not
been enacted or promulgated in tlie form of a statute or or‐dinance, including the
unenacted portions of the common law, general and particular customs having the
tbe force of law, and the rules, principles, and maxims established by judicial
precedents or the successive like decisions of the courts. (Black’s Law)
Reporters
Where common law from appellate court decisions are published in books in
chronological order.
Case Law
A professional name for the aggregate or reported cases as forming a body of
jurisprudence; or for the law of a particular subject as evidenced or formed by the
adjudged cases; in distinction to statutes and other sources of law. (Black’s Law)
Statutes
Laws made by Congress or by State legislatures.
Ordinance
Written law for Cities and counties. Example: Zoning Ordinance
Codes
A collection or compendium of laws. A complete system of positive law,
scientifically arranged, and promulgated by legislative authority.
Case or controversy
A requirement that courts may decide only cases in which an actual conflict
between persons exists.
Judicial Activists
Judges whose judicial philosophy includes treating the law as a vibrant and active
source of rules. When faced with new issues (e.g., social), such judges are likely to
see the Constitution as a flexible document and stare decisis as challengeable
when they believe important social needs must be addressed.
Strict Contructionists
Judges whose reading of the law narrowly interprets legal words and who
subscribe to interpreting the law consistent with the believed meaning given it by
drafters.
Dicta
Latin. “Remarks.” Any part of a court opinion that is unnecessary to the resolution
of dispute before the court. Such digression by a judge is not binding on later
courts.
Initiative
An electoral process for making new statutes or changing the constitution by filing
appropriate formal petitions to be voted on by legislature (and governor) or by the
people. The initiative is not available in all states.
Criminal Law
That branch or division of law which treats of crimes and their punishments (Black’s Law)
Private Law
As used in contradistinction to public law, the term means all that part of the law
which is administered between citizen and citizeu, or which is concerned with the
definition, regulation, and enforcement of rights in cases where both the person in
whom the right inheres and the person upon whom the obligation is incident are
private Individuals. (Black’s Law)
Public Law
The laws that cover administration, constitution and criminal acts. It controls the
actions between the citizens of the state and the state itself. It deals with the
governments operation and structure. (Black’s Law)
International Law
The term given to the laws governing and determining the rights of independent
nations during war or peace times. (Black’s Law)
Procedural Law
The technical aspects of a legal system that states the steps that need to be
followed while enforcing criminal or civil law.
Substantive Law
That part of the law which the courts are established to administer, as opposed to
the rules according to which the substantive law Itself is administered. That part of
the law which creates, defines, and regulates rights, as opposed to adjective or
remedial law, which prescribes the method of enforcing rights or obtaining redress
for their invasion. (Black’s Law)
Ethics
Directives based on one’s ethics and morality. How one lives with others. The
foremost concepts and principles of proper human conduct. Socially, it is the
collective of universal values, treating each human equally, acknowledging human
and natural rights, obeying the law of land, showing health and safety concerns,
caring for natural environment. (Black’s Law)
Morals
- Pertaining or relating to the conscience or moral sense or to the general
principles of right conduct. 2. Cognizable or enforceable only by the conscience or
by the principles of right conduct, as distinguished from positive law. 3. Depending
upon or resulting from probability ; raising a belief or conviction in the mind
independent of strict or logical proof. 4. Involving or affecting the moral sense; as
in the phrase “moral insanity.” (Black’s Law)
Moral Problem Solving
Conflict‐resolution process aimed at solving conflicts involving moral dilemmas
through communication, education, and negotiation. The broad term describes
interrelational rather than individual process.
Code of Ethics
A written set of guidelines of the company’s primary worth and ethical standards
given from an organization to its workers and management to guide all involved in
the company’s business in their actions. (Black’s Law)
Moral Reasoning
A rational thought process directed at testing whether action is right or wrong. The
conclusion is a determination of moral responsibility or culpability.
Duty-Based Ethics
The doctrine that actions are morally correct if they comply with existing
obligations owed another or ourselves.
Untilitarianism
Ethical philosophy where happiness of most people it thought to be the greater good. (Black’s Law)
Deductive Logic
Deductive logic is a method of logical reasoning from two or more propositions to a
conclusion. Inferences are drawn from a general premise to a specific premise. The
argument is sound if the propositions on which the conclusion is based are true
and if the inferences are valid.
Syllogism
Deduction may be understood as a pattern or syllogism. Syllogisms help to organize
thinking so that a valid conclusion is reached. They help to identify incorrect
premises and flawed thinking. Moral reasoning follows the following pattern:
Proposition One (general premise), Proposition Two (specific, factual, or situational
premise), Conclusion (moral determination.)
Nonnormative Statements
Statements that reflect no value judgment are objective. They are what is so. These
statements are referred to as positive or nonnormative statements.
Normative Statements
Statements that reflect what should be or how one should act are called normative
statements. They tell what someone deems socially acceptable. The statement is
subjective.
Culpability
Blamable; censurable; involving the breach of a legal duty or the commission of a
fault. The term is not necessarily equivalent to “criminal,” for, in present use, and
notwithstanding its derivation, it implies that the act or conduct spoken of Is
reprehensible or wrong but not that it Involves malice or a guilty purpose.
“Culpable” in fact connotes fault rather than guilt. (Black’s Law)
Legal Citation
Abbreviated reference to a variety of legal authorities, including court cases
Unanimous Opinion
When the judges unanimously agree on an opinion, one judge writes the opinion
for the entire court and it is called a unanimous opinion; this opinion is binding
precedent..
Majority Opinion
When the opinion is not unanimous, a majority opinion is written by one of the
judges. This opinion outlines the views of the majority of the judges deciding the
case; this opinion is binding precedent.
Concurring Opinion
Often, a judge who feels strongly about making a point that was not made in the
unanimous or majority opinion will write a concurring opinion. The judge agrees
(concurs) with the judgment given in the unanimous or majority opinion, but for
different reasons; this opinion is not binding precedent but is persuasive
precedent.
Dissenting Opinion
If the opinion is not unanimous, a dissenting opinion may be written by a judge
who disagrees with the majority’s ruling. The dissenting opinion is important
because it may form the basis of arguments used years later to overrule the
majority opinion; dissenting opinions are not binding precedent but are persuasive
precedent.
Appellant or Petitioner
The party who appeals to a higher court for review of a lower court ruling.
Appellee or Respondent
The party who, on appeal, defends the earlier court determination.
Adversarial System
In an adversarial system, parties to legal actions are opponents. The judge is
independent and neutral, unlike magistrates in so‐called inquisitorial systems.
Courts make decisions based on facts brought to their attention by the proponents
and opponents in the legal conflict. Each party is responsible for producing
evidence and rules of law that supports its contentions. The competitors openly
are biased and partial to their respective sides. Each party asserts every possible
reason to merit victory. Every theory asserted or discovered is considered and
subject to attack and counterattack. The Judge ensures that procedural rules are
followed.
Inquisitiorial System
A legal system used in most countries that allows the judge to investigate, question
witnesses, and seek out evidence before and during trial.
Attorney-at-Law
A person licensed to practice law, and usually called a lawyer, attorney, counsel, or
counselor
Legal Assistant
Someone with specialized training who assists an attorney. Also called a
“paralegal.”
Fiduciary Relationship
A relationship between two persons wherein one has an obligation to perform services with scrupulous good faith and honesty.
In Propria Persona (In pro se)
Term meaning the person represents herself or himself in a legal action without the appearance of an attorney
Contingency Feel
A fixed percentage of the monetary recovery obtained by a lawyer for a client. It is agreed on in advance and accepted in full payment for services rendered; the attorney is only paid if the client actually recovers.
Legal Services Corporation (LSC)
A federally funded corporation that distributes federal tax dollars to state programs that provide legal assistance in noncriminal proceedings to person financially unable to afford such services.
Pro Bono Publico
When an attorney provides legal services free of charge to poor but worthy clients or causes.
Legal Service Plans
Insurance plans designed to make legal services available to members of unions or other organizations, such as business firms.
Public Interest Law Firms
A nonprofit law firm that offers assistance in areas such as employment, minority rights, civil rights, political rights, family law and environmental law.
Rules of Professional Conduct
Written rules of conduct that are adopted by and binding upon members of a
professional group.
Legal Ethics
Rules promulgated by lawyer‐governing bodies to proscribe standards of
professional behavior and regulate lawyer and judicial conduct.
Attorney‐Client privilege
The right of clients to keep communications with their attorneys confidential and
free from disclosure.
Conflict of Interest
When a client’s interests are at odds with another’s that the attorney serves, might
serve, or is tempted to serve the other.
Public Defender
A lawyer provided by the community for a person who is accused of a serious crime
(felony) and cannot afford to hire counsel.
Advance Feed deposit
Fees paid in advance that are held in a trust account to be drawn down (taken) by
the attorney as work progresses.
Retainer Fee
A sum of money paid to an attorney for a promise to remain available to the client
for consultation when needed and requested.
Class Action Law Suit
When all members of a group of persons who have suffered the same or similar
injury join together in a single lawsuit against the alleged wrongdoer. The group
must be so numerous that it is impracticable to bring all members before the court
individually.
Maintenance
Assisting a party to a lawsuit with money or otherwise, to prosecute or defend the
lawsuit
Champerty
The doctrine of champerty forbids one from financially participating in the lawsuit
of another. Champerty is an illegal agreement between a litigant and someone who
agrees to finance the litigation in return for a portion of the outcome if the litigant
is successful. Society’s concern is that investment in cases by outsiders encourages
gambling and litigation.
Legal Malpractice
Violation of a duty of due care by a professional person.
Negotiation
Communication between disputing parties for the purpose of persuasion and settlement or resolution.
American Arbitration Association (AAA)
A private nonprofit organization with the purpose of providing education, training and administrative assistance to parties who use nonjudicial methods - that is, alternative dispute resolution (ADR)- for resolving disputes.
Arbitration
An alternative to litigation whereby conflicting parties select a neutral third party
(for parties) to hear and decide their dispute. Arbitration can be binding or
nonbinding.
Award
The final decision of a judge, arbitrator or other nonjudicial officer in the resolution
of a dispute.
Court-annexed Arbitration
A type of nonbinding arbitration required by some courts before the parties may
proceed to trial.
Med-arb
An alternative dispute resolution (ADR) process that combines mediation and
arbitration.
Private Judging
The use of a legally trained arbitrator who follows formal judicial procedures in hearing a case outside court.
Ombudsperson or Ombud
An ombudperson or ombud is a consultant or permanent employee of an
organization hired to resolve conflicts that arise within the organization.
Expert Fact-Finding
A process by which a neutral party with subject‐matter expertise is appointed to
conduct an independent investigation or take evidence on selected factual issues in
highly technical matters
Early Neutral Evaluation
objective of the process is to facilitate negotiations, not to decide the case. A
neutral third party conducts a hearing and issues an opinion as to the merits of the
case and the strengths and weaknesses of evidence and assesses the likely
Mini-Trial
A private, voluntary informal form of dispute resolution in which attorneys for each
disputant make a brief presentation of their best case before officials for each side
who have authority to settle.
Summary Jury Trial
A nonbinding alternative dispute resolution (ADR) process in which parties present
their cases to a private mock jury, which then gives the parties an advisory verdict.
Mock Jury
A panel of lay citizens selected and paid to mirror the role of an actual jury.
Collaborative Law Practice
A method whereby the parties agree to resolve disputes without court intervention
using interest‐based negotiation practices.
Partnering
A team‐building process designed to improve contract performance and reduce or
eliminate contract litigation through common understanding of goals and
improved communication. The process is used in large, complicated, and expensive
contracts and has its roots in the construction industry.
Commerce Clause
Article I, Section 8 of the Constitution: “ The Congress shall have Power… To
regulate Commerce with foreign Nations, and among the several States….”
Interpreted to give Congress the power to enact most of the federal regulation of
business by tying it to interstate commerce.
The Necessary and Proper Clause
Clause 18 of Article I, Section 8, gives Congress power “to make all Laws which shall
be necessary and proper for carrying in to Execution the foregoing Powers and all
other Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.”
Supremacy Clause
Article VI, Paragraph 2,”The Constitution, and the Laws of the United States… shall
be the supreme Law of the Land; and the judges in every State shall be bound
thereby….”; states that federal laws are supreme over state laws
Interstate Commerce
Business that concerns more than one state. 3 types of interstate commerce: (1)
channels of interstate commerce (e.g. roads, waterways), (2) persons or things in
interstate commerce, (3) activities having a substantial effect on interstate
commerce.
Political Speech
Example case: Citizens United v.Federal Election Commission (130 S.Ct. 876)‐the
court struck down portions of federal law, the McCain‐Feingold Act. The Act
prohibited for‐profit and nonprofit corporations and unions from broadcasting “
electioneering communication.” That was defined as any communication that
mentioned a candidate for office within 60 days of a general election or 30 days of
a primary election.
Commercial Speech
Commercial speech doctrine first came about as restrictions on advertising were
attacked as anticompetitive. Example Case: Central Hudson Gas and Electric
decision, the Court established a four‐part test that must be met to justify
restrictions on commercial speech.
Exclusionary Rule
Evidence improperly gathered by law enforcement officials violates 4th
Amendment rights regarding search and seizure and may not be used in court
under the exclusionary rule.
Self-Incrimination
5th Amendment protects individuals against self‐incrimination: “No person shall be
… compelled in any criminal case to be a witness against himself.” This protection
applies to persons, not to corporations. Although, corporate executives cannot be
made to testify against themselves, business records that might incriminate the
corporation and the executives must be produced since the 5th Amendment does
not protect such records.
Just Compensation
5th Amendment also states, “… nor shall private property be taken for public use,
without just compensation.” Termed the just compensation or takings clause, it
requires governments to pay for property when a government requires an owner
to sell because public officials determined that the property should be used for
some public purpose, such as or the construction of a highway, school, or military
base. Compensates a person for property taken through the power of eminent
domain.
Eminent Domain
Eminent domain is the right of the people or government to take private property
for public use. (Black’s Law)
Regulatroy Takings
Regulatory takings cases indicate that the destruction of property value must be
almost complete for compensation to be due. If a regulation, such as a decision by
a government to build a garbage dump next to a house, reduces the value of
property by, say, 60 percent, it is very unlikely that compensation is due. That is
not an uncommon result of a change in zoning laws or rule that eliminates the
ability of a company to produce a particular product or for certain residential
property to be desirable.
Excessive Fines
8th Amendment holds that no excessive fines may be imposed by the court or
government.
Due Process Clause
(1) 5th Amendment right stating that “[N]or person…shall be deprived of life,
liberty, or property without due process of law.” (2) 14th Amendment right stating
that “[N]or shall any State deprive any person of life, liberty, or property without
due process of law.” Both of these amendments serve as safeguards against
arbitrary denial of life, liberty or property; the 5th protects against the federal
government and 14th against state governments.
Equal Protection Clause
14th Amendment: “[N]or [shall any state] deny to any person within its jurisdiction
the equal protection of the laws.” Courts have also read an equal protection clause
into the 5th Amendment; meaning that although it is not explicitly stated, it is
inherent in the Constitution. Protects against discrimination in the application of
the laws.
Rule of Law
Principle that decisions should be made by the application of established laws
without the intervention of individual discretion
Bias
A preconceived belief affecting neutrality
Court
(a) A government body that administers justice by applying laws to civil
controversies and criminal offenses. (b) The place where trials are held.
Trial Court
The initial court that hears evidence and applies the law to decided facts.
